The Genius of John Rawls

More years ago than I care to remember, I prepared for a career as a scholar. Before oral examinations, we were required to complete four research seminars. In one of them, we read John Rawls' A Theory of Justice (1971). Among the many reasons I was not cut out for a work as an academic is the fact that I did not comprehend the brilliance of the work. To make amends, I now acknowledge the work as among the most significant pieces of political philosophy penned during the twentieth century.

One of the central riddles of life in any community is explaining how strangers acquire authority over one another. We distinguish mere power from authority intuitively. A gang-banger with a gun can compel me to do his bidding by mere display of force; a police officer's gun also compels by force, but in the latter's case, we say he is also armed with right. Who does it come to pass that we invest some with the extra-added dollop of legitimacy?

Social contract theory is one explanation. We are said to exchange natural liberty for the constraints of civil society. In so doing, we exchange liberty for security. To the state goes a monopoly of the legitimate use of force. Related to the formation of government are our intuitions about distributive justice. How do we decide who should get how much of the spoils created by living together in peace?

Rawls' genius was in unpacking our intuitions about justice and putting them in the form of social contract theory. But he did not commit the anthropological error of assuming we ever lived in Eden. Rather he sought to explain our intuitions about justice in terms of social contract theory understood almost in the form of an imaginative game. The simple moves sketched in A Theory of Justice teach much.

Consider distribution of wealth. Rawls places all individuals in a society behind a veil of ignorance. They have a general awareness of the range of roles and responsibilities in their society. They simply do not know the position they will occupy in that society. They are, if you will, in a state of suspended animation, what Rawls calls reflexive equilibrium. Would a person approve of the distribution of goods in a society if they realized that they stood a chance of occupying the lowest rung in terms of status, wealth and power?

Rawls does not argue that the best society is one in which all folks are treated equally. He is not a primitive communist. From behind the veil of ignorance, folks realize that talents and aptitudes are also distributed more or less at random. You can as easily be cast by chance brilliant as a fool.

But any rational actor contemplating society from behind the veil of ignorance will seek to maximize the minimum position, the so-called maximin principle. In other words, against the chance that I am not going to emerge from behind the veil as Bill Gates, what are the minimum acceptable conditions I can accept and still believe society to be just? What are the minimal acceptable consequences of failure?

I've been thinking alot about Rawls as I watch the fall out from the financial crisis. Wall Street tycoons get bailed out by tax dollars and then get fat bonuses while ordinary folks lose their homes. Can anyone really believe this is just? Who, from behing the veil of ignorance, would countenance such a result?

When the consequences of failure are unacceptable, a society is in danger of losing its sense of legitimacy. My sense is that we are well on the way to have lost our sense of legitimacy.

But Rawls' insights go deeper than merely explaining a sense of distributive justice. His method reflects how and why we make judgments about the conduct of others in virtually every circumstance. Although I do not recall his using the term, I believe he might approve of the notion of imaginative transference. When we consider the acts or circumstances of another, we place ourselves in that person's shoes. It is a sympathetic instinct I suspect few can avoid.

A good friend tells me his skin is thick. He cares but little for the opinions of others. Yet he is quick to judge the conduct of others. What to make of this asymmetry? To use Rawls' terms, we all live, moment by moment, in an inchoate state of reflexive equilibrium. In other words, the instinct to make judgments about our relation to others is not easily overcome, if it can be overcome at all. It is perhaps for this reason that we recognize the inability to gauge social consequences as a form of mental and/or emotional illness. To exist is to care.

Rawls' simple but profound reconstruction of the social contract is a tool of use in evaluating political judgments and claims of distributive justice. I am persuaded it can also shed light on how jurors and judges make judgments as well. But that is the work of another day. Anyone read anything exploring this?

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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